Free expression is a bedrock of liberal society. Without it, democracy is impossible.
Though sometimes misconstrued as “I can say whatever I want, whenever I want, without consequence,” the core principle is that force cannot be used to stop expression. Most notably, governments cannot restrict political speech.
Like all big ideas, it comes with flaws. But as a guiding principle, free speech is better for individuals, politics, and society than the alternative. It facilitates the spread and competition of ideas, ensures individual freedom, checks government power, and provides a prerequisite for free and fair elections.
However, an illiberal current within liberal society argues that some speech should be deemed out of bounds, and that legal restrictions or private efforts should silence unwanted expression.
The illiberal argument focuses on group equality rather than individual liberty. For example, hate speech against historically marginalized groups restricts their ability to participate in politics and society as equals. By outlawing hate speech, countries counter institutionalized racial, ethnic, religious, and/or gender-based inequality.
Alternatively, countries prioritize a national goal over individual liberty. Germany outlawed Holocaust denial and the swastika in an effort to move on from and never return to its Nazi legacy. France bans individuals from publicly displaying religious symbols, which advocates claim is necessary to ensure the country’s secular character.
Approaches to speech restrictions, and which type of speech is being restricted, vary by country. In general, economically developed democracies protect expression more than other countries, and the United States and Japan support freedom of expression more than Europe. However, some illiberalizing trends can be seen in the United States.
Freedom of speech is important but not absolute. The difficulty lies in where to draw the line.
Normal Restrictions on Expression
Free speech is a natural right, meaning it comes from God or nature, and predates governments. It is a negative right in that it grants individuals freedom from government interference.
By contrast, positive rights require a governmental context. They are entitlements — such as the right to an education or the right to healthcare — and require a government to provide resources. From the liberal perspective, this is adopting the language of rights to bolster support for something different. Universal education or universal healthcare may be desirable public goals, but they are inherently different from negative liberties, such as free expression.
The philosophical arguments for free speech and other liberal freedoms come from the Enlightenment’s emphasis on individual rights and a social contract between government and governed.
The principle is codified in two of the foundational documents of liberal society, France’s Declaration of the Rights of Man and of the Citizen (1789), and the First Amendment of the U.S. Constitution (submitted 1789, ratified 1791).
Both documents cast freedom of speech as a negative liberty and link it to other liberal freedoms, namely freedom of the press. But the French version includes an important caveat — which the United States made official in subsequent laws and court cases — that individuals are responsible if they abuse their freedom of speech. Governments can restrict free expression if and only if it comes into conflict with other liberal freedoms.
This has led to restrictions on speech that harms individual or public safety (incitement, some threats) and free exchange (defamation, intellectual property), as well as time and place restrictions (for example, I can’t blast my political opinion from loudspeakers in a residential neighborhood at 3 a.m.).
Public figures are usually exempt from defamation protections, honoring the right of citizens to criticize the government, a key element of the social contract. Satire is also exempt, though it typically requires a reasonable person to be able to recognize the speaker is joking. But that doesn’t mean “I was kidding” provides automatic protection from defamation charges.
Liberal societies also impose restrictions on obscenity and pornography. However, recognizing that this is a restriction on artistic — and sometimes political — speech without a clear physical safety rationale, most countries have relaxed their regulations, limiting obscenity restrictions to public venues, such as broadcast networks, and opting for warnings (e.g., movie ratings) rather than bans.
The public safety exemption was famously captured in Justice Oliver Wendell Holmes opinion in the U.S. Supreme Court case Schenck v. United States (1919):
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
“Fire in a crowded theater” has become a cliché illustrating how the right to free speech is not absolute, but few know the details of the case. In Schenck, the Court ruled the government could prosecute individuals who urged resistance to the draft. Draft dodging is illegal, but verbally denouncing the draft is speech. However, the Court determined that urging others to dodge the draft during World War I constituted a “clear and present danger” to the United States.
By contrast, in Terminiello v. City of Chicago (1949), the Court struck down a Chicago law outlawing speech that “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” In the majority opinion, Justice William Douglas argued that the point of free speech is inviting dispute, even if the verbal disputes create anger.
The main difference between these two cases appears to be circumstantial. The legal specifics differ, but the principle behind the Court’s decisions can be boiled down to this: The United States could treat World War I as a state of emergency, but Chicago could not treat urban unrest as such.
Abstractly, one can understand why countries would see major war as a state of emergency justifying suspension of individual rights. But the problem is that governments choose when to declare states of emergency, and the point of liberal freedoms is protecting individuals from the whims of government.
The War on Terror highlights this danger. Despite no formal declaration, the United States has been on a war footing since September 11, 2001, and the government has engaged in some questionable practices violating individual rights in the name of fighting terrorism. The UK, France, Germany, Canada, and other Western nations face terrorist threats as well and have altered laws in response, though none have faced accusations of human rights violations as much as America.
The threat of terrorism is not going away, and governments could easily abuse emergency powers. For example, in July 2016, Turkey—already raising observers’ concerns regarding individual rights — declared a state of emergency in response to a failed coup attempt. Under that state of emergency, the government has arrested writers, newspaper editors, and a political cartoonist for mocking or criticizing the government of President Erdogan.
Speech Around the World
While all countries have some exemptions to free expression, it is noteworthy that the vast majority acknowledge the importance of the concept.
Free speech features prominently in the Universal Declaration of Human Rights — adopted by the United Nations in 1948 — appearing in the preamble and Article 19:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Every democratic constitution includes text guaranteeing free expression. For example, Article 21 of the Constitution of Japan states:
Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.
No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.
Even nondemocracies pay lip service to freedom of speech. The Chinese constitution states, “Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.”
But that’s not true in practice. The Chinese government controls the media and censors the internet, banning popular non-Chinese social networks (Twitter, Facebook, Snapchat), monitoring internet and print activity, and sometimes arresting journalists, activists, and others who criticize the government. Nevertheless, the choice to include rather than reject the principle of free speech shows that the People’s Republic recognizes its universal appeal.
In Freedom House’s 2017 ranking of freedom in the world, China registered as Not Free (on a three-point scale, which includes Partly Free and Free). Freedom House rates 211 countries’ political rights and civil liberties from one (most free) to seven (least free), using that information to inform its main ranking. China, with considerable censorship and one party rule, received a six in civil liberties and seven in political rights.
Turkey ranked as Partly Free, with a four in political rights and five in censorship. Freedom House highlighted Turkey as a country with less freedom in 2017 than last year.
Countries receiving a score of one in both categories include Australia, Costa Rica, Denmark, Japan, and Uruguay. At the low end of the Free category, with moderate restrictions to civil liberties, are Botswana, Hungary, and India. All Free countries are democracies with fair elections and protections for freedoms of speech and press.
Time and place, public safety, defamation, and intellectual property constitute normal restrictions on free speech, but many countries add additional constraints. Blasphemy is outlawed in many Partly Free and Not Free countries, such as Iran, Indonesia, and Pakistan, as well as some countries Freedom House ranks as Free, including Finland and Ireland.
Many countries, including many European democracies, outlaw expression they designate as hate speech. This includes slurs, bigotry, and other speech that attacks individuals or groups based on race, religion, gender, sexual orientation, national origin, and other inviolable characteristics. For example, Sweden prohibits hate speech but makes exceptions for private communication and “pertinent and responsible debate.” France goes further, making some private hate speech punishable by law.
South Africa — a country with as charged a racial history as any — excludes hate speech from freedom-of-expression language in its constitution and addresses hate speech in section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (2000):
no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to—
(a) be hurtful;
(b) be harmful or to incite harm;
(c) promote or propagate hatred
Supporters of hate-speech laws argue that they are necessary to ensure equality. Prejudicial speech against a particular group leads to prejudicial actions, and the hate speech intimidates members of the targeted group, denying them full participation in public life, including politics. For example, if getting to the polls requires passing through an angry crowd yelling ethnic slurs, fewer members of a historically disadvantaged group will vote. That fits (b) and (c) of the South African law and is arguably against the public interest.
Opponents of hate speech focus on (a): “be hurtful.” It is more subjective, and more emotional, than hindering free and fair elections. Critics of hate-speech laws argue that they overrule freedom of speech in favor of “freedom from offense,” trading a negative for a positive liberty. And it’s not hard to imagine governments abusing the power, prosecuting political dissenters by labeling their speech offensive. Most hate-speech laws do not specify the target, which means state punishment designed to protect historically disadvantaged minorities could easily be used by dominant majorities.
The United States does not outlaw hate speech. Often, that puts the government on the side of bigoted groups, protecting their right to speak in public. For example, in National Socialist Party of America v. Village of Skokie (1977), the U.S. Supreme Court and Supreme Court of Illinois ruled that displaying a swastika constituted free speech, and that neo-Nazis could march in Skokie, Illinois, a predominantly Jewish community with numerous Holocaust survivors.
That would be illegal in the UK, France, Germany, and many other democratic countries.
In a more recent example, the Supreme Court ruled in Snyder v. Phelps (2011) that the Westboro Baptist Church (WBC) could hold protests on public property near a military funeral. At a funeral for U.S. Marine Matthew Snyder, WBC members carried picket signs with slogans such as “Semper Fi Fags” and “Thank God for dead soldiers.” Matthew’s father Albert, who is gay, sued Fred Phelps, the head of the WBC, claiming severe emotional distress.
Though a lower court awarded Snyder a multimillion-dollar settlement, the Supreme Court overturned it 8–1. The opinion stated that since WBC was adhering to reasonable restrictions on free speech — protesting during the day, on a public sidewalk, somewhat removed from the funeral — the demonstrators’ statements could not be the basis of a tort liability, even if reasonably interpreted as “offensive” or “outrageous.”
However, though the United States does not outlaw hate speech, that doesn’t mean racist, sexist, and other bigoted language runs rampant. Legal punishments are not the only way to change usage.
Consider the racial slur “n*****,” probably the most offensive word in the English language.
The United States never criminalized the word, but as a result of social pressure, its publicly understood meaning and usage changed a great deal. My editor and I censored it voluntarily, making a free choice, and would not have faced legal prosecution if we chose otherwise.
Considering the differences between hate crime laws in the United States and Europe, it is unsurprising that Americans are more supportive of free expression, even if that expression can sometimes be offensive.
Interestingly, despite Japan’s below average ranking, the country does not outlaw hate speech, even though there have been public protests and multiple recommendations by U.N. commissions to do so.
Shutting Down Speakers
Absent laws forbidding hate speech, American activists have undertaken efforts to shut down expression they deem offensive. Many of the cases that have attracted national attention took place on college campuses. The most common example is students protesting against an invited speaker, leading the speaker to drop out or the university to formally withdraw the invitation. Other, more recent cases, involve violence.
This is a charged topic, plagued by hyperbolic arguments on both sides. Let’s clear up some misunderstandings:
1. Protests and denunciations are free speech.
If I say something you think is offensive, and you tell me to shut up and call me a racist, you are not violating my free speech rights. You’re exercising free speech. So was I. As long as no authority forces either of us to stop and neither of us get violent, we’re engaging in a debate, however uncouth. Similarly, peacefully demonstrating against a speaker, no matter the reason, is expressing a political opinion.
2. Free speech forbids punishing expression; it does not require giving a speaker a platform.
A college can invite or disinvite whoever it wants to. A newspaper or website can choose to publish or not publish any opinion. No organization with the ability to amplify speech is required to do so, and choosing not to host a speaker does not violate that speaker’s rights.
3. Disinviting or otherwise shutting down speakers is illiberal.
Though revoking speaking invitations in response to protests does not violate anyone’s freedom of speech, it is nevertheless an illiberal action. It designates certain speech out of bounds based on the content or the identity of the speaker, rather than treating all political speech and speakers equally.
The Foundation for Individual Rights in Education cataloged 342 cases in the United States from 2000 to 2017 in which college protesters attempted to shut down an invited speaker. Of those, 151 resulted in formal disinvitations.
Notable recent examples include:
- Former Secretary of State Condoleeza Rice, who withdrew from a commencement address at Rutgers University in 2014 in response to protests over her role in the Bush administration.
- Director of the International Monetary Fund Christine Lagarde, who withdrew from a commencement address at Smith College in 2014 following student and faculty complaints about IMF policies.
- Israeli-American activist Miko Peled, disinvited from a campus event at Princeton University in 2016 after protests over his support for the Boycott, Divestment, and Sanctions movement against Israel.
Barack Obama offered the liberal counterargument to these illiberal actions in a 2016 commencement address at Howard University:
There’s been a trend around the country of trying to get colleges to disinvite speakers with a different point of view, or disrupt a politician’s rally. Don’t do that — no matter how ridiculous or offensive you might find the things that come out of their mouths. Because as my grandmother used to tell me, every time a fool speaks, they are just advertising their own ignorance. Let them talk. Let them talk. If you don’t, you just make them a victim, and then they can avoid accountability.
That doesn’t mean you shouldn’t challenge them. Have the confidence to challenge them, the confidence in the rightness of your position. There will be times when you shouldn’t compromise your core values, your integrity, and you will have the responsibility to speak up in the face of injustice. But listen. Engage. If the other side has a point, learn from them. If they’re wrong, rebut them. Teach them. Beat them on the battlefield of ideas.
4. Using force to shut down speech violates individual freedom.
Free speech rights primarily restrict governments, but not exclusively. Nongovernmental groups can cross the line from peaceful protest and declining to offer a platform to forcibly shutting down speech.
The student government of Wesleyan University defunded the student newspaper in the spring semester of 2016, because it published an opinion critical of Black Lives Matter.
This is not an especially egregious case. It does not involve physical violence, and the paper regained its funding the next semester. However, it is clearly illiberal. The newspaper chose to publish the essay, and the student government used the power of the purse to silence the entire paper in response.
The case is illustrative because the student government acted based on the content of the article. If you read it, you’ll see that, no matter what you think of the argument, the style befits an op-ed page. It presents an opinion and considers multiple positions, using conventionally acceptable language. There are, for example, no racial slurs. The student government’s only objection was to the writer’s opinion.
A more dramatic case, featuring physical violence, was a protest against provocateur Milo Yiannopoulos at UC Berkeley in early 2017. The university blamed “150 masked agitators” — nonstudents — who disrupted a peaceful protest. They threw fireworks and rocks at police, broke windows at the student union, and tossed a few Molotov cocktails. Six people were injured, the campus sustained $100,000 in damages, and the talk was canceled amid the violence.
In response, Berkeley’s chancellor asserted:
While Yiannopoulos’ views, tactics and rhetoric are profoundly contrary to those of the campus, UC Berkeley is bound by the Constitution, the law and the university’s values and Principles of Community, which include the enabling of free expression across the full spectrum of opinion and perspectives.
Also in 2017, a protest disrupted American Enterprise Institute scholar Charles Murray’s talk at Middlebury College. Protesters shouted over Murray and Middlebury professor Allison Stanger, exercising the “heckler’s veto.” In response, the speakers moved to another location to stream the talk without a live audience, but the protesters discovered the location, banged on windows and pulled fire alarms.
Afterward, as Dr. Murray and I left the building with Bill Burger, Middlebury’s vice president for communications, a mob charged us. Most of the hatred was focused on Dr. Murray, but when I took his right arm to shield him and to make sure we stayed together, the crowd turned on me. Someone pulled my hair, while others were shoving me. I feared for my life. Once we got into the car, protesters climbed on it, hitting the windows and rocking the vehicle whenever we stopped to avoid harming them. I am still wearing a neck brace, and spent a week in a dark room to recover from a concussion caused by the whiplash.
This case stands out because there’s no indication hate speech was involved. While Yiannopoulos’ shtick includes insults and bigotry to provoke reactions, Murray’s planned talk was relatively moderate.
As an experiment, Cornell professors Wendy Williams and Stephen Ceci transcribed Murray’s Middlebury speech and sent it to some college professors. Fifty-seven read it without knowing the identity of the author and rated it “middle of the road.” Another 44 who read it with Murray’s name attached judged it moderately right of center.
Protesters primarily objected to Murray’s 1994 book, The Bell Curve, which argues that racial disparities in IQ scores may be partially genetic. The book has received considerable criticism both for racism and flawed methodology. Though the protesters said they were angry about it, some admitted they never actually read it.
Murray’s talk was middle of the road. Stanger is a Democrat and disagrees with Murray. Nevertheless, protesters decided to riot, censoring the speech of an invited guest because they dislike a book he wrote more than 20 years ago.
This trend is concerning for more than just the specific examples involving force. Colleges and universities help shape high-level discourse, influencing national leaders in politics, media, business, and activism. Much of the power of liberal freedoms is normative, and eroding free speech norms at institutions of higher education threatens free speech nationally.
In an example showing this trend extends beyond college campuses, presidential candidate Donald Trump canceled a March 2016 rally in Chicago in response to protests that were turning violent. Thousands of demonstrators, heeding calls to shut down the rally — not express their disagreement, but stop the speech with which they disagreed — gathered near the UIC Pavilion before the rally inside was scheduled to begin. After the Trump campaign cancelled over safety concerns, pro- and anti-Trump demonstrators clashed. Four people were arrested.
One need not support Trump to see this as denying rally-goers their right to peacefully assemble. And while the protesters believed they were countering hate speech, they failed on their own terms. Shutting down the rally drew attention to Trump’s message rather than mute it, galvanized his supporters, and made a subset of them feel more justified in their own illiberal beliefs.
Liberalism vs. Illiberalism
Most attempts to restrict speech are well-intentioned. But those fighting to deny free expression based the identity of the speaker or the content of the speech are moving their countries away from the liberal ideal. That comes with risks.
The liberal standard is straightforward: Do not privilege any political speech over any other. That presents a clear — admittedly imperfect — guideline for both principles and laws, transcending administrations, states, and cultures.
The illiberal alternative does not offer a clear guideline. Its bedrock principle is that certain people should determine which political speech can be forcibly suppressed.
But which people? And which political speech?
When European governments outlaw Holocaust denial, large democratic majorities are imposing a narrow restriction, backed by arguments about national interest and equality. Hate-speech laws go further. Forcibly shutting down speakers because of who they are or what they have to say goes further still.
There’s no line. The justification for outlawing particular speech is inherently subjective. For example, when aiming to protect minorities, there’s no objective standard as to which minorities qualify. The argument ultimately boils down to “because the people think it’s bad.” But what the people think is subject to change, as is who constitutes “the people.”
At the international level, a group of Islamic countries, led by Pakistan, have pushed the United Nations to protect religions from defamation. Their plan, which calls for international law banning mockery of religion, passed the U.N. General Assembly but ran into resistance from Western and Latin American nations when they tried to get it adopted by the U.N. Human Rights Council. If implemented, it would add freedom from potentially hearing other people saying unflattering things about your religion to the list of human rights the United Nations is supposed to defend, and provide a mechanism for advancing laws against certain political cartoons and other speech that Islamic countries deem offensive. Critics worry it could suppress political and artistic expression and lead to persecution of religious minorities.
Consider for a moment the debate over America’s imperial presidency. As the executive branch gained power, critics warned it was too much to give to one person. Even if a president used it wisely — and the additional power made things easier to accomplish — the potential for abuse was too great. Now many who were comfortable with that much power wielded by George W. Bush or Barack Obama are less comfortable with it in the hands of Donald Trump.
Similarly, the downside risks of restricting speech are almost always greater than the potential upsides. In the wrong hands, it could have devastating consequences. It is therefore better to give no one the power than to say it’s okay as long as the right people wield it, not least because it’s impossible to make an objective standard of the “right” and “wrong” people.
Here’s an objective standard: Every human being has the right to free speech.
As Evelyn Beatrice Hall put it (in a line usually misattributed to Voltaire): “I disapprove of what you say, but I will defend to the death your right to say it.”
I’m not a free speech absolutist. Absolutism in politics is dangerous — a close cousin of extremism. Reality is often gray. Exceptions sometimes warranted. But the more exceptions to the rule, the less it matters.
Senior Editor at Arc Digital. Poli Sci prof (IR) at U. Illinois. Author of “Drones and Terrorism.” Politics, national security, and occasional nerdery.
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